PRO 2-05
OT:RR:CTF:ER
H271023 ABH
Port Director
Port of New York/Newark
U.S. Customs and Border Protection
1100 Raymond Blvd., Suite 402
Newark, NJ 07102
Attn: Denise Hopkins, Import Specialist; Jennifer Tagliaferro, Supervisory Entry Specialist
Re: Application of Further Review for Protest 4601-15-100768; Antidumping duties; Importer of Record; Polyethylene retail carrier bags from China
Dear Port Director:
The purpose of this correspondence is to address the application for further review (“AFR”) of Protest Number 4601-15-100768, dated June 15, 2015, filed by Green Island Import Export USA, Inc. (“Green Island”), regarding the assessment of antidumping duties and interest on the importation of polyethylene (“PET”) retail carrier bags from the People’s Republic of China (“China”). A teleconference was held with Green Island on July 26, 2017.
FACTS:
Green Island states that it is a small importer and wholesaler of dried and frozen seafood and other food products since 2012. On August 25, 2013, Green Island states that without its knowledge a shipment of PET bags were imported and entered using its name and importer identification number for entry number XXX-XXXX872-3 at the Port of Newark, New Jersey. The entry was a Type O1 entry of “sacks/bags plastic ethylene.” The shipment was entered by Customs broker Solan A. James D/B/A Solan A. James Enterprise (“Solan”) who had a Power of Attorney (“POA”) signed by Dai Wei Rong (a/k/a “David”) on July 25, 2013, as Green Island’s “manager.” The invoice and packing list provided with the entry packet was on Universal Packaging Supplies (“Universal”) letterhead and the invoice indicated Green Island as the customer. The transport bill of lading indicated that the shipper was Taishan City Ji Cheng Plastic Products Co., Ltd (“Taishan Plastic Products”) and Green Island was indicated as the consignee and notify party. The arrival notice lists Green Island as consignee and states “Prior to cargo pick-up, Consignee must clear Customs and confirm freight release with Pier/CFS.”
On July 9, 2014, U.S. Customs and Border Protection (“CBP”) issued a CBP Form 29 detailing that the entry was subject to antidumping duties pursuant to the order on PET retail carrier bags from The People’s Republic of China under case number A-570-886 (“PRCB Order”). CBP indicated that Green Island owed $17,495.10 in antidumping duties and interest. The entry was subject to the U.S. Department of Commerce’s liquidation order under Message Number 4289319 issued on October 16, 2014. On December 19, 2014, CBP liquidated the entry at double the antidumping duties, in the amount of $34,990.28, because Green Island did not provide a non-reimbursement statement.
On June 15, 2015, Green Island protested CBP’s decision to liquidate the entry and assess antidumping duties and interest on the covered merchandise. Green Island argues that “it did not intend, cause and/or authorize the filing of the entry in question or the importation of covered merchandise alleged to be certain quantities of polyethylene retail carrier bags and, as such, [Green Island] is not the importer of record of the subject entr[y].” Green Island asserts that it is “not the party responsible for the antidumping duties and interest assessed by Customs with respect to this entry,” and accordingly, CBP should “cancel the subject entries and assessed duties and interest in so much as they apply to [Green Island].”
Green Island contends that Mr. Rong is the individual believed to be the owner and actual importer of record for the goods. As mentioned above, Mr. Rong signed the Power of Attorney (“POA”) as Green Island’s “manager” for the Customs broker Solan who filed the entry documents for the entry at issue with CBP. Mr. Rong provided Solan with a copy of his passport to verify the authenticity of his signature. Green Island asserts that its President, Kyle Jia Li, “personally signs all Power(s) of Attorney issued to designated Customs brokers.” In an affidavit attached to the protest, Mr. Li declared that he is the sole corporate officer with the authority to sign Power(s) of Attorney and that he has only issued one Power of Attorney for Customs broker services to A Plus Brokerage. Mr. Li also declared that he has “not authorized any other employee or any other person to sign and issue a Power of Attorney to [Solan].” Further, Mr. Li declared that: he did not purchase or own the merchandise identified in the entry; he has never imported or offered for sale any products similar to, or of the same class and kind, as the merchandise at issue; he did not cause the purchase and exportation of the merchandise; and finally, he did not cause or authorize, or cause or authorize others to import and/or enter the merchandise into the United States in Green Island’s name. Green Island also contests the validity of Customs’ claim that the products are in fact PET retail carrier bags and that they are subject to antidumping duty order A-570-886 because it did not purchase or import the subject goods and is therefore unaware of the actual contents of the shipment.
The entry at issue in this protest was targeted by CBP after the discovery of antidumping duty order circumvention of the PRCB Order with regard to entry number XXX-XXXX840-0. Similar to the entry which is the subject of this protest, entry number XXX-XXXX840-0 listed Green Island as the ultimate consignee and the customer on the commercial invoice, which was on Universal letterhead. The importer of record, however, was Universal, which is located in Hong Kong. On December 2, 2013, CBP issued a CBP Form 29 Notice of Action to Green Island stating that “[u]pon review, the merchandise invoiced was found to be polyethylene retail carrier bags from China and subject to antidumping duties. The importer confirmed that the manufacturer is [Taishan Plastic Products] . . . . the applicable case number and deposit rate is A-570-886-000 at 77.57%. If not received, you may be subject to penalties for failure to pay duties . . . .”
On December 12, 2013, the Supervisory Import Specialist spoke with Mr. Li and Mr. Rong and requested information on the manufacturer of the bags for entry number XXX-XXXX840-0. Both admitted that the manufacturer was Taishan Plastic Products located in China and faxed over the manufacturer name and address for verification. The typed fax signed off stating “Thank you! Green Island Import Export USA, Inc., Tel#718-567-3339.” The shipment was imported duty paid by the broker, C.H. Robinson Freight Services, Ltd. and the broker was not able to secure payment of the antidumping duties from Universal. On February 4, 2014, CBP issued Green Island a CBP Form 29 Notice of Action stating that Green Island had 30 days to export the merchandise or it would be disposed of under Customs supervision.
On February 7, 2014, CBP conducted an importer interview to review the targeted entry number XXX-XXXX840-0. CBP also presented three similar entries during the interview to Mr. Li and Mr. Rong – including the entry at issue in this protest, entry numbers XXX-XXXX872-3, XXX-XXXX537-4, and XXX-XXXX772-9. In attendance were Mr. Li, Mr. Rong, and Sharron Clifford, a Customs Broker from C.H. Robinson. Mr. Rong did not speak English and Mr. Li served as his translator. The interview notes indicate Mr. Rong went by “David Rong” and he claimed that he acted as a buying agent for a friend named Ho in China. According to Mr. Rong, Ho arranged and handled the importation process including the port of entry and transportation. Mr. Rong stated during the interview that the manufacturer was also a friend. Mr. Rong stated that he accepted no payment or commission from Universal while he was acting as a buying agent, but was only helping his friend. Mr. Rong stated that the U.S. customer paid him in cash and he then sent payments to the manufacturer in China. The targeted shipment contained plastic retail carrier bags with the U.S. customer’s store name printed on them.
During the interview, Mr. Li stated that he allowed Mr. Rong to store shipments at his warehouse and that he also wired payments to the manufacturer on behalf of Mr. Rong. The record includes three examples of such wire payments from Green Island to Taishan in the amounts of $20,000, $50,000, and $15,000. The “message or reference” indicates “Plastic Bags” and the wire transfers were dated December 20, 2012, August 5, 2013, and September 18, 2013. Two of the wires were conducted in person by Mr. Li, as indicated by the driver’s license number on the wire transfer documentation. The wire transfer not conducted by Mr. Li indicates the “originator’s name” as Green Island and the money was wired from the same account number with regard to all three transactions.
Mr. Li stated that Mr. Rong does not work for him. Mr. Li stated that he did not use Solan as a broker. As mentioned above, Mr. Rong signed the POA with Solan and stated that he worked for Green Island as a “manager.” Mr. Li and Mr. Rong stated that the shipments in those three entries did not contain plastic bags subject to the PRCB Order. With regard to entry number XXX-XXXX840-0, an exclusion notice was issued on February 4, 2014, and the shipment was subsequently exported on February 26, 2014.
ISSUES:
Whether CBP properly assessed antidumping duties on the entry at issue as against Green Island?
LAW AND ANALYSIS:
It is the opinion of your office that this protest meets the criteria for further review. We agree and are of the opinion that this protest involves questions of law and fact which have not been previously ruled upon. 19 C.F.R. § 174.24(b). We also note that the instant protest was timely filed. Pursuant to 19 U.S.C. § 1514(c)(3)(A), a party must file a protest within 180 days after the date of liquidation. CBP liquidated the relevant entry on December 19, 2014. Green Island filed its protest on June 15, 2015, which is within the 180-day deadline.
Green Island protests CBP’s liquidation of entry number XXX-XXXX872-3 with the assessment of antidumping duties and interest under the PRCB Order. Green Island argues that its “identity was stolen” and “it did not intend, cause and/or authorize the filing of the entry in question or the importation of covered merchandise alleged to be certain quantities of polyethylene retail carrier bags and, as such, [Green Island] is not the importer of record of the subject entr[y].” An importer of record is defined as “the owner or purchaser of the merchandise.” 19 U.S.C. § 1484(a)(2)(B). “Owner” and “purchaser” are further defined in Customs Directive, (“C.D.”), 3530-002A, dated June 27, 2001. Section 5.3.1 of the directive provides:
The terms “owner” and “purchaser” include any party with a financial interest in a transaction, including, but not limited to, the actual owner of the goods, the actual purchaser of the goods, . . . , etc.
C.D. 3530-002A.
In this case, the port reasonably relied on the information presented in the entry documentation to determine that Green Island is the proper importer of record. The record evidence demonstrates that Green Island is listed on the Entry Summary (CBP Form 7501) and Entry/Immediate Delivery (CBP Form 3461) as the Importer of Record. Universal’s invoice lists Green Island as the customer. The transport bill of lading lists Green Island as the consignee and notify party. When the port requested information about the manufacturer, the typed fax indicated Green Island was responding and included Green Island’s telephone number. The telephone number included in the fax corresponds to the telephone number listed for Green Island on the World Wide Web. The arrival notice listed Green Island as the consignee and the same telephone number for Green Island. The arrival notice stated that the consignee must clear customs prior to cargo pick-up. Mr. Li admitted that Green Island stored the shipments of plastic bags at its warehouse and that Green Island wired payments to the manufacturer of the merchandise. The record includes documentation of three such wire payments from Green Island to Taishan. With regard to two of the transactions, Mr. Li made the wire payments in person. All three wire payments were from the same account number and indicated Green Island as the “originator.” All three wire payments indicated “plastic bags” as the message or purpose for payment. Further, Green Island was the principal on the continuous bond covering the entry.
All the evidence points to Green Island as the importer of record – as the owner or purchaser of the merchandise. Green Island’s contention that it cannot be the importer of record does not outweigh CBP’s authority to rely on the entry documentation and evidence before it. Green Island claims that while its identity was stolen for purposes of the entry documents, the wire transfers were deliberate and done as a favor to Mr. Rong. Even after Mr. Li learned of the fraud he alleges, he still interpreted for Mr. Rong during the interview with CBP and did not otherwise distance himself from Mr. Rong.
Given the close business relationship between Mr. Li and Mr. Rong, Mr. Li could have protected himself against liability for increased duties pursuant to 19 U.S.C. § 1485(d), which provides, in relevant part, that
an importer of record shall not be liable for any additional or increased duties if (1) he declares at the time of entry that he is not the actual owner of the merchandise, (2) he furnishes the name and address of such owner, and (3) within ninety days from the date of entry he produces a declaration of such owner conditioned that he will pay all additional and increased duties . . . .
The CBP regulations repeat these three requirements and set forth the procedure for obtaining relief under the statute. 19 C.F.R. § 141.20; see also HQ 230208 (July 15, 2005) (noting the availability of 19 U.S.C. § 1485(d) to remedy the misidentification of the importer of record).
Under the facts of this case, while Green Island’s claim that the broker did not possess a valid POA may have merit, it does not destroy the validity of CBP’s reliance on the information provided in the entry documents. See HQ H230208 (July 15, 2005) (determining that the invalidity of the broker’s POA did not undermine the liability of the importer of record). Pursuant to 19 C.F.R. § 141.46, “[b]efore transacting customs business in the name of his principal, a customshouse broker is required to obtain a valid power of attorney to do so.” Only a president, vice-president, secretary, treasurer, or a person duly authorized to bind the corporation may sign a power of attorney. See 19 C.F.R. § 141.38. Thus, even if Mr. Rong were the “manager” of Green Island, he would not have been authorized to sign a POA on behalf of Green Island. Solan, as a broker, “must exercise responsible supervision and control over the transaction of the customs business.” 19 C.F.R. § 111.28(a). This failure, however, does not absolve Green Island of its responsibilities as the importer of record under the specific facts of this case.
To the extent that Green Island “contests the validity of Customs’ claim that the products are in fact” subject to the PRCB Order, we disagree. CBP inspected the contents of the merchandise at issue in a similar entry – entry number XXX-XXXX840-0 – and found the contents to be subject to the PRCB Order. On that inspected entry, Green Island was the named consignee on the CBP Form 3461 (Entry/Immediate Delivery). The description of merchandise is identical to that at issue in this protest. The invoices for both entries list identical “Mark & Nos.” including: “12X20 Plastic Bag; 11.8X6.7X24 Plastic Bag; 8X4X18 Plastic Bag; and 10X5X18 Plastic Bag.” The unit prices indicated for each line item are also identical. The bill of lading for both entries identify Green Island as the consignee and notify party. Thus, the port reasonably inferred that the merchandise was identical and the entry contained merchandise subject to the PRCB order.
HOLDING:
In accordance with the above, the protest should be DENIED IN FULL. The evidence supports the port’s finding that Green Island was properly identified as the importer of record on the entry. The fact that the broker did not have a proper POA does not affect Green Island’s liability under the facts of this case. Finally, the port reasonably determined that the merchandise was subject to the PRCB Order.
Consistent with the decision set forth above, you are hereby directed to deny the subject protest. This decision should be mailed by your office to the protestant no later than 60 days from the date of this letter. On that date, the Office of Trade will make the decision available to Customs personnel and to the public on the Customs Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Myles B. Harmon, Director
Commercial & Trade Facilitation Division